Open Records Decision No. 339
December 31, 1982
Re: Law enforcement records relating to aggravated sexual abuse
Mr. John M. Knight
Acting City Attorney
P. O. Box 358
Plano, Texas 75074
Dear Mr. Knight:
You have requested our decision under the Open Records Act, article 6252-17a,
V.T.C.S., as to the availability of law enforcement records related to sexual abuse.
The records at issue here concern an alleged incident of aggravated sexual abuse
which occurred in Plano on June 17, 1982. You state that the incident “is currently and
for the forseeable future will continue to be actively investigated by the Plano Police
Department, possibly resulting in a criminal trial.” You suggest that the records are
excepted from disclosure by sections 3(a)(3), 3(a)(8) and 3(a)(11) of the Open Records
Act. We will first address the applicability of section 3(a)(8).
Since the incident is still under investigation, the principles relating to closed law
enforcement files, Open Records Decision Nos. 252 (1980); 216 (1978), are not
applicable here. As a result, the only information available under section 3(a)(8) is that
held disclosable in Houston Chronicle Publishing Company v. City of Houston, 531
S.W.2d 177 (Tex. Civ. App. - Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam,
536 S.W.2d 559 (Tex. 1976). Basically, the only such information required to be
disclosed is that which appears on the front page of an offense report:
offense committed
location of crime
identification and description of complainant
premises involved
time of occurrence
property involved
vehicle involved
description of weather
detailed description of offense
names of investigating officers
Open Records Decision No. 127 (1976).
The court of civil appeals in the Houston Chronicle case held that the press and
public have a “constitutionally protected right” to the front page of an offense report.
The supreme court, in its refusal to grant a writ due to no reversible error, specifically
reserved the question of “whether the press and public have a statutory or constitutional
right to obtain” this information. 536 S.W.2d at 561. The decision of the court of civil
appeals fails to cite relevant authority for its finding of a “constitutionally protected
right” to the front page of an offense report; the United States Supreme Court has never
recognized such a right; and no open records decision since the Houston Chronicle case
has relied on such a right. We believe that the Supreme Court of Texas cast considerable
doubt upon the judgment of the court of civil appeals that such a constitutional right
exists. We have concluded that questions concerning the disclosure under the Open
Records Act of particular offense report information must depend upon the provisions of
the act itself rather than upon an asserted constitutional “right to know.” Thus, while the
decision of the court of civil appeals in Houston Chronicle may furnish some guidance
we do not regard it as providing a “right to know” issue.
In the present instance, we believe that much of this information may be withheld
under section 3(a)(1), as “information deemed confidential by law,” in this case, common
law privacy. A common law right of privacy will ordinarily exist in any information
which contains highly intimate or embarrassing facts about a person, the disclosure of
which would be “highly objectionable to a person of ordinary sensibilities,” and, in
addition, is of no legitimate concern to the public. Industrial Foundation of the South v.
Texas Industrial Accident Board, 540 S.W.2d 668, 678-81 (Tex. 1976). In Open
Records Decision No. 262 (1980), we said that medical information might raise a claim
of common law privacy if it relates to a “drug overdose, acute alcohol intoxication,
obstetrical/gynecological illness, convulsions/seizures or emotional/mental distress.” It is
clear that a detailed description of an incident of aggravated sexual abuse raises an issue
of common law privacy. See Open Records Decision Nos. 260, 237 (1980).
In instances of serious sexual assault, the appellate courts sometimes shield a
victim by referring to her only by her initials. See King v. State, 631 S.W.2d 486, 488
(n.3) (Tex. Crim. App. 1982). In our opinion, common law privacy permits the
withholding of the name of every victim of a serious sexual offense. See Open Records
Decision No. 205 (1978). The mere fact that a person has been the object of a rape or
attempted rape does, we believe, reveal “highly intimate or embarrassing facts” about the
victim, and, in our view, disclosure of this fact would be “highly objectionable to a
person of ordinary sensibilities.” Although there is certainly a strong public interest in
knowing that a crime has been committed, we do not believe that such interest requires
the disclosure of the names of victims. Furthermore, certain other information, such as
the location of the crime, might furnish a basis for identification of the victim. See Open
Records Decision No. 181 (1977). Thus, in our opinion, the only information which
need be disclosed in this case is:
offense committed
time of occurrence
description of weather
name of investigating officers
When the file on this matter is closed, either by prosecution or by administrative
decision, other information may become available. See Open Records Decision Nos. 252
(1980); 216 (1978). As to your claims under section 3(a)(3) and 3(a)(11), such
exceptions would not provide a basis for withholding any information not already
excepted by sections 3(a)(1) and 3(a)(8).
Very truly yours,
Mark White
Attorney General of Texas
John W. Fainter, Jr.
First Assistant Attorney General
Richard E. Gray III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger